Desmond, J.
These are proceedings, brought under article 78 of the Civil Practice Act, to review determinations of respondent Board of Regents, suspending for certain periods the medical licenses of petitioners Barsky and Auslander, and [95]*95censuring and reprimanding petitioner Miller. In each instance the board found authority for its action in paragraph (b) of subdivision 2 of section 6514 of the Education Law, which authorizes disciplinary action against a physician who ‘£ has been convicted in a court of competent jurisdiction, either within or without this state, of a crime ’ ’. The question on this appeal is as to the meaning and application of that statute.
Each of the petitioners-appellants is a physician licensed to practice in this State. All three were members of the executive board of the Joint Anti-Fascist Refugee Committee, a voluntary association which functioned during the Second World War and immediately thereafter (see the brief statement of its history and aims, in Anti-Fascist Committee v. McGrath, 341 U. S. 123, 130,131). All three were indicted in the United States District Court for the District of Columbia for, and all were, after a jury trial in that court, convicted of the misdemeanor of contempt of Congress, under section 192 of title 2 of the United States Code, in that each of them failed to obey a subpoena requiring him to produce before a Congressional Committee the financial books and records of the Joint Anti-Fascist Refugee Committee. Each was sentenced to a fine and to imprisonment. The judgments of conviction were affirmed on appeal (Barsky v. United States, 167 F. 2d 241), certiorari was twice denied by the Supreme Court (334 U. S. 843; 339 U. S. 971), and each petitioner paid his fine and was imprisoned. Then followed the charges with which we deal here.
We consider that, in these records on appeal, there are no controlling facts other than those above summarized, since the voluminous testimony before the Regents as to the character and purposes of the Joint Anti-Fascist Refugee Committee, and as to the motives of these appellants, could not change the admitted fact of their conviction. From the record it is clear that each petitioner has, in fact, ££ been convicted in a court of competent jurisdiction * * * without this state, of a crime ” (Education Law, § 6514, subd. 2, par. [b]). Petitioners, however, make these arguments: first, that the statutory language applies only to such offenses as are crimes under New York law, and that contempt of Congress (U. S. Code, tit. 2, § 192) is not a crime under any statute of this State; second, that the [96]*96legislative intent of section 6514 (subd. 2, par. [b]) is to authorize disciplinary action for such offenses only as involve moral turpitude, or are related to professional ability or conduct, and, third, that the Regents imposed unwarranted punishment, and took into account prejudicial matter in fixing the penalties.
There is nothing in section 6514 (subd. 2, par. [b]) which says that, in order to serve as a predicate for action thereunder, the “ crime ” must be one specifically forbidden as such by a New York penal statute. Indeed, a directly opposite idea is expressed in the language: ‘1 convicted in a court of competent jurisdiction, either within or without this state ”. Such language is too plain to permit construction by addition of unexpressed qualifications or exceptions (Matter of Rathscheck, 300 N. Y. 346, 350). Petitioners, however, argue that such decisions as Matter of Donegan (282 N. Y. 285); People ex rel. Marks v. Brophy (293 N. Y. 469); Matter of Tonis v. Board of Regents (295 N. Y. 286), and Matter of Garsson v. Wallin (304 N. Y. 702) mean that the New York courts construe such statutes as section 6514 (subd. 2, par. [b]) as authorizing penalties for such offenses only as are made criminal, if committed in this State, by our own laws. As to the Donegan, Marks, Tonis and Garsson cases, each had to do with the imposition of stringent additional penalties on, and solely because of, conviction of a “ felony ”. Donegan, Marks, Tonis and Garsson had each fallen afoul of a foreign statute which made certain conduct a felony which was either a misdemeanor in New York or not cognizable at all under our domestic statutory definitions and classifications of crimes. Indeed, this court, as to Donegan (see 282 N. Y., p. 293), made it clear that it was not denying the Appellate Division’s discretionary power to deal with him as one guilty of a “ crime ” (Judiciary Law, former § 88, subd. 2, now § 90, subd. 2). In the statute now before us (Education Law, § 6514, subd. 2, par. [b]), the Legislature has authorized disciplinary action against one convicted, not of a “ felony ”, but of a “ crime ”. Traditionally as well as by express statute (Penal Law, § 2), the word “ crime ” in New York law includes misdemeanors as well as felonies, and so it.is patent that these petitioners have “ been convicted in a court of competent jurisdiction * * * without this state, of a crime ”. As we [97]*97remarked in People ex rel. Marks v. Brophy (supra, pp. 474-475), it is the policy of our State not to decree forfeitures in our courts, if we can avoid them, for violations of the criminal laws of another jurisdiction. But public policy is made by the Legislature (see Matter of Rhinelander, 290 N. Y. 31, 36) and the policy of this section of the Education Law cannot be misunderstood. It does not require the imposition of any particular penalties, but leaves it to the Regents to decide on the measure of discipline, up to the extreme limit of license revocation.
We do not find it necessary to rely on an additional ground, put forward in the report of the Regents’ Committee on Discipline in those proceedings for holding that petitioners’ conviction in the District of Columbia was for a “ crime ”, as that word is used in the Education Law section. The Committee on Discipline noted that New York does have, in section 1330 of the Penal Law, a provision making it a misdemeanor willfully to refuse to produce material and proper documents before a committee of our State Legislature. That enactment, the Regents’ Committee thought, is so similar in meaning to section 192 of title 2 of the United States Code, that one violating the latter is really committing about the same offense as is made criminal by our section 1330. Be that as it may, we construe section 6514 (subd. 2, par. [b]) of the Education Law as it plainly reads, that is, to authorize discipline by the Regents in the event of a conviction of a physician of a crime in any court of competent jurisdiction. Section 1330 (supra) does, however, have this significance at this point: it illustrates, at least, that making a criminal offense out of a refusal to obey a legislative subpoena is in line with New York public policy, as well as that of the Federal Government.
Appellants suggest that a literal construction of section 6514 (subd. 2, par. [b]) will empower the Board of Regents to destroy a person, professionally, solely on a showing of the commission by him in some other State (or country) of an act which we in New York consider noncriminal, or even meritorious.
Free access — add to your briefcase to read the full text and ask questions with AI
Desmond, J.
These are proceedings, brought under article 78 of the Civil Practice Act, to review determinations of respondent Board of Regents, suspending for certain periods the medical licenses of petitioners Barsky and Auslander, and [95]*95censuring and reprimanding petitioner Miller. In each instance the board found authority for its action in paragraph (b) of subdivision 2 of section 6514 of the Education Law, which authorizes disciplinary action against a physician who ‘£ has been convicted in a court of competent jurisdiction, either within or without this state, of a crime ’ ’. The question on this appeal is as to the meaning and application of that statute.
Each of the petitioners-appellants is a physician licensed to practice in this State. All three were members of the executive board of the Joint Anti-Fascist Refugee Committee, a voluntary association which functioned during the Second World War and immediately thereafter (see the brief statement of its history and aims, in Anti-Fascist Committee v. McGrath, 341 U. S. 123, 130,131). All three were indicted in the United States District Court for the District of Columbia for, and all were, after a jury trial in that court, convicted of the misdemeanor of contempt of Congress, under section 192 of title 2 of the United States Code, in that each of them failed to obey a subpoena requiring him to produce before a Congressional Committee the financial books and records of the Joint Anti-Fascist Refugee Committee. Each was sentenced to a fine and to imprisonment. The judgments of conviction were affirmed on appeal (Barsky v. United States, 167 F. 2d 241), certiorari was twice denied by the Supreme Court (334 U. S. 843; 339 U. S. 971), and each petitioner paid his fine and was imprisoned. Then followed the charges with which we deal here.
We consider that, in these records on appeal, there are no controlling facts other than those above summarized, since the voluminous testimony before the Regents as to the character and purposes of the Joint Anti-Fascist Refugee Committee, and as to the motives of these appellants, could not change the admitted fact of their conviction. From the record it is clear that each petitioner has, in fact, ££ been convicted in a court of competent jurisdiction * * * without this state, of a crime ” (Education Law, § 6514, subd. 2, par. [b]). Petitioners, however, make these arguments: first, that the statutory language applies only to such offenses as are crimes under New York law, and that contempt of Congress (U. S. Code, tit. 2, § 192) is not a crime under any statute of this State; second, that the [96]*96legislative intent of section 6514 (subd. 2, par. [b]) is to authorize disciplinary action for such offenses only as involve moral turpitude, or are related to professional ability or conduct, and, third, that the Regents imposed unwarranted punishment, and took into account prejudicial matter in fixing the penalties.
There is nothing in section 6514 (subd. 2, par. [b]) which says that, in order to serve as a predicate for action thereunder, the “ crime ” must be one specifically forbidden as such by a New York penal statute. Indeed, a directly opposite idea is expressed in the language: ‘1 convicted in a court of competent jurisdiction, either within or without this state ”. Such language is too plain to permit construction by addition of unexpressed qualifications or exceptions (Matter of Rathscheck, 300 N. Y. 346, 350). Petitioners, however, argue that such decisions as Matter of Donegan (282 N. Y. 285); People ex rel. Marks v. Brophy (293 N. Y. 469); Matter of Tonis v. Board of Regents (295 N. Y. 286), and Matter of Garsson v. Wallin (304 N. Y. 702) mean that the New York courts construe such statutes as section 6514 (subd. 2, par. [b]) as authorizing penalties for such offenses only as are made criminal, if committed in this State, by our own laws. As to the Donegan, Marks, Tonis and Garsson cases, each had to do with the imposition of stringent additional penalties on, and solely because of, conviction of a “ felony ”. Donegan, Marks, Tonis and Garsson had each fallen afoul of a foreign statute which made certain conduct a felony which was either a misdemeanor in New York or not cognizable at all under our domestic statutory definitions and classifications of crimes. Indeed, this court, as to Donegan (see 282 N. Y., p. 293), made it clear that it was not denying the Appellate Division’s discretionary power to deal with him as one guilty of a “ crime ” (Judiciary Law, former § 88, subd. 2, now § 90, subd. 2). In the statute now before us (Education Law, § 6514, subd. 2, par. [b]), the Legislature has authorized disciplinary action against one convicted, not of a “ felony ”, but of a “ crime ”. Traditionally as well as by express statute (Penal Law, § 2), the word “ crime ” in New York law includes misdemeanors as well as felonies, and so it.is patent that these petitioners have “ been convicted in a court of competent jurisdiction * * * without this state, of a crime ”. As we [97]*97remarked in People ex rel. Marks v. Brophy (supra, pp. 474-475), it is the policy of our State not to decree forfeitures in our courts, if we can avoid them, for violations of the criminal laws of another jurisdiction. But public policy is made by the Legislature (see Matter of Rhinelander, 290 N. Y. 31, 36) and the policy of this section of the Education Law cannot be misunderstood. It does not require the imposition of any particular penalties, but leaves it to the Regents to decide on the measure of discipline, up to the extreme limit of license revocation.
We do not find it necessary to rely on an additional ground, put forward in the report of the Regents’ Committee on Discipline in those proceedings for holding that petitioners’ conviction in the District of Columbia was for a “ crime ”, as that word is used in the Education Law section. The Committee on Discipline noted that New York does have, in section 1330 of the Penal Law, a provision making it a misdemeanor willfully to refuse to produce material and proper documents before a committee of our State Legislature. That enactment, the Regents’ Committee thought, is so similar in meaning to section 192 of title 2 of the United States Code, that one violating the latter is really committing about the same offense as is made criminal by our section 1330. Be that as it may, we construe section 6514 (subd. 2, par. [b]) of the Education Law as it plainly reads, that is, to authorize discipline by the Regents in the event of a conviction of a physician of a crime in any court of competent jurisdiction. Section 1330 (supra) does, however, have this significance at this point: it illustrates, at least, that making a criminal offense out of a refusal to obey a legislative subpoena is in line with New York public policy, as well as that of the Federal Government.
Appellants suggest that a literal construction of section 6514 (subd. 2, par. [b]) will empower the Board of Regents to destroy a person, professionally, solely on a showing of the commission by him in some other State (or country) of an act which we in New York consider noncriminal, or even meritorious. Two answers are available to that: first, some reliance must be placed on the good sense and judgment of our Board of Regents, in handling any such theoretically possible eases; and, second, the [98]*98offense here committed, contempt of Congress, is no mere trivial transgression of an arbitrary statute.
Turning to appellants’ second main argument, we consider it impossible to read into section 6514 (subd. 2, par. [b]) a condition or qualification that, to justify professional discipline, the crime must be one involving moral turpitude (see, as to there being no moral turpitude in this offense Sinclair v. United States, 279 U. S. 263, 299), or one related to the profession itself. The Legislature knows how to state such limitations when it so desires (see, for instance, present Education Law, § 7406, subd. 1, as to certified public accountants, and, as to physicians, compare former Public Health Law, § 161, with present Education Law, § 6502). Nor is this an attempt to “ enforce the criminal laws of the United States ” (People v. Welch, 141 N. Y. 266, 275). We are enforcing our own statute, of not uncertain meaning, which simply empowers the Regents to impose a penalty upon any physician who has been convicted of a crime in any competent court anywhere. Stringent as it is, that statute needs no cutting down for constitutionality’s sake. In is no argument against the validity of this statute that it considers a criminal conviction anywhere as a showing of unfitness, for “ it is not open to doubt that the commission of crime, the violation of the penal laws of a State, has some relation to the question of character ” (Hawker v. New York, 170 U. S. 189, 196). A professional license is a high privilege from the State, and the State can attach to its possession conditions onerous and exacting. The special equities of individual cases can be reflected in variety of punishment, as was done here, but the choice among such varieties is for the board, not the courts (Matter of Sagos v. O’Connell, 301 N. Y. 212).
Somewhat similar to the argument (supra) that moral turpitude must be shown, is the contention that the Regents acted arbitrarily in acting on the Federal conviction alone, without regard to the moral right or wrong of what petitioners actually did, that is, refuse to obey legislative subpoenas, and without regard to their motives. Of course, the statute itself was justification for taldng the conviction as a professional fault, and the Regents, receiving voluminous testimony as to the nature of [99]*99the work of the Joint Anti-Fascist Refugee Committee, and of the character and purposes of these petitioners, are presumed to have taken all those things into account in fixing the penalties.
As to the assertions, by appellants, that the Regents dealt too severely with them, or that the Regents, in deciding on punishment, ignored weighty considerations and acted on matters not proper for consideration, it is enough to say that we are wholly without jurisdiction to review such questions (People ex rel. Masterson v. French, 110 N. Y. 494, 500; People ex rel. McAleer v. French, 119 N. Y. 502, 507; Matter of Greenebaum v. Bingham, 201 N. Y. 343, 347; People ex rel. Morrissey v. Waldo, 212 N. Y. 174,179; People ex rel. Regan v. Enright, 240 N. Y. 194,198,199; Matter of Sagos v. O’Connell, 301 N. Y. 212, 215, supra; 1 Benjamin, Report to the Governor on Administrative Adjudication, pp. 170, 217; see Jaffe v. State Dept. of Health, 135 Conn. 339, 352, 353, 354; Williams v. New York, 337 U. S. 241, 246 et seq.). Matter of Tompkins v. Board of Regents (299 N. Y. 469) does not announce or apply any different rule as to court review of administrative direction in measuring out discipline against physicians. In the Tompkins case, we reversed an Appellate Division order annulling a Regents’ determination, because the Appellate Division had exceeded its powers in so doing. Sending the whole matter back to the Regents, because of that error of law, we reminded the board of the physician’s fine record, etc., and suggested that such factors should be significant to the board in again “ exercising its broad discretion to frame the appropriate discipline, for the offense and for the offender.” In that same connection, however, in Tompkins, we made it entirely clear that the “ exercise of that discretion is beyond our power to review” (p. 476). Had we not there found an error of law (not as to punishment but as to the Appellate Division’s unwarranted annulment order) we could not, in the Tompkins case, have done other than affirm. In the present case there is no error of law, and so no basis for any interference by us.
The orders should be affirmed.